minister. In inducting ministers by the Governor, on the presentation of the parishes, or on his own collation, he is to see the ministers be qualified, according as that Act for inducting ministers requires. In case of the avoidance of any church, the Governor, as ordinary of the plantation, is, according to the statute of 28th Henry 8, cap. 11, s. 5, to appoint a minister to officiate till the parish shall present one, or the six months be lapsed; and such person appointed to officiate in the vacancy, is to be paid for his service out of the profits thereof, from the time the church becomes void by the law above stated. In this case no minister is to officiate as such till he hath showed to the Governor he is qualified, according as the said Act for induction directs; if the vestry do not levy the tobacco for the minister, the courts there must decree the same to be levied.

July 29, 1703.

EDWARD NORTHEY.

(4.) OPINION of the Attorney General, SIR EDWARD NORTHEY, on the granting of Letters of Administration on the same Estate, both in England and in the Colonies. 1707.

To the Right Honourable the Lords Commissioners for Trade and Plantations.

MAY IT PLEASE YOUR LORDSHIPS,-In obedience to your Lordships' commands, signified to me by Mr. Popple, I have considered of the enclosed extract of Lord Cornbury's instructions, and of his letter relating to the granting letters of administration; and your Lordships having required my opinion thereon, and what may be fit for her Majesty to do in all the plantations on the like occasions, I do most humbly certify to your Lordships, that by law, where a man dies intestate in the plantations, having a personal estate there, and also any personal estate, or debts owing, here in England, the right of granting administration belongs to the Archbishop of Canterbury; and if administration be granted, in the plantations, also (which may be), that administrator will be accountable to the administrator in England, but will be allowed the payment of just debts, if paid in the order the law allows of-that is to say, the whole personal estate, in England and the plantations, will be liable to all the intestate's debts

in both places, and out of the whole, first, debts owing to her Majesty, then judgments, statutes and recognizances, then bonds, then debts, without speciality, both there and in England, are to be satisfied; and the administrator in the plantations will not be allowed the payment of any debts, without speciality, if there be debts of a superior nature unsatisfied in England; for every administrator is bound to take care to apply the intestate's assets to discharge his debts, in the order the law directs, and it matters not whether the debts were contracted in England or the plantations. If there be debts of equal nature in England and the plantations, the administrator may discharge which he pleases, before he be sued for any other of the like nature. This, indeed, is some difficulty on administrators, but it is no more there than in England; and attempts have been made by Acts of Assembly, in some of the plantations particularly, as I remember, in Pennsylvania-to appropriate the effects in the plantations, of persons dying there, to the discharging debts contracted there; but those Acts have been repealed here, as being prejudicial to this kingdom. I am also of opinion, that when the letters of administration arrive at the plantations, under the seal of the Prerogative Court of Canterbury, they are to be allowed there, and the authority of the administration granted in the plantations from that time ceases.

March, 1707.

EDW. NORTHEY.

(5.) OBSERVATIONS by the King's Advocate, SIR JAMES MARRIOTT, on enforcing residence at a living in Barbadoes, in the Case of the REV. MR. BARNARD (1). 1764.

It is stated that the Governor of Barbadoes institutes to all livings in the island of Barbadoes.

That no law of the island enforces residence.

That the Royal institutions are silent.

That there is no judicature there to inflict the penalty of the Act of Parliament.

The question is, how residence can be enforced ?

It appears that the commission granted by George I. to Bishop

(1) From a MS. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott, King's Advocate.

Gibson, then Bishop of London, empowering him to act in all respects by his commissaries as diocesan of the colonies, was personal, and was never obeyed nor held to be sufficient.

The jurisdiction of the Bishops of London in the colonies, on the foot of custom, is not established nor exercised effectually; nor does anything appear further than that, upon the first setting-up a Virginia Company, they were recommended by the then Government to apply to the Bishop of London to assist them in sending some clergymen of the Church of England to reside in that infant colony.

Nothing more has passed since, than merely on a supposition that the Bishops of London had jurisdiction (of some sort or other) in the colonies; and so all the instructions to the governors have ordered them to give countenance to the Bishop of London's jurisdiction accordingly.

The jurisdiction, therefore, of the Bishops of London and all other ecclesiastical authority is out of the present question.

It seems to rest entirely on the Act of the 21st Hen. 8, called the "Act of Non-residence," to the penalty of which Mr. Barnard is liable whenever any person shall sue him for the same. He is liable to the penalty of £10 for every default.

The word "default" is defined by Bracton to be an omission of anything which ought to be done; if so, the penalty for every month's omission will fall heavily on Mr. Barnard in the course of every year's absence, and he may be sued for the amount of all the gross sum chargeable for every month's non-residence.

But if the word "default" does not mean omission, toties quoties, but a defect in the course of a year taken altogether, and legal conviction thereupon, then the penalty of £10 for such annual default would certainly be insufficient to enforce residence as is necessary, and Mr. Barnard will avail himself of the advantage.

But there seems a difficulty in complying with the request of the Governor, that his Majesty should grant fresh instructions to his governors in the colonies in cases of non-residence, to declare the living vacant, and to institute other rectors.

It is apprehended that his Majesty cannot empower any governor, by their authority under his commission, to deprive clergymen of their freeholds. His Majesty's supremacy is exercised in ecclesiastical causes, as well as in civil, in the same manner and with

the same limitations; and his ecclesiastical courts and temporal courts can only deprive the subject on legal conviction of offences. His Majesty's judges are the keepers of his Majesty's conscience; they are answerable for the decrees they make, and it is the happiness and prerogative of his Majesty to judge no man's life or property in person.

If his Majesty, as supreme in all causes, ecclesiastical and civil, could by his bare instructions authorize the inflicting of penalties, he might erect of his pleasure any sort of courts whatsoever, which he cannot; and, therefore, if the penalty of the 21st of Hen. 8 is insufficient in case of non-residence in the colonies, it should seem a proper object for the consideration of Parliament to find an effectual remedy; for the legality of deprivation in consequence of the royal instructions would certainly be called in question by the American clergy.

December 25, 1764.

(6.) OPINION of the King's Advocate, SIR CHRISTOPHER ROBINSON, on a Marriage performed by a Methodist Minister in Newfoundland.

Doctors' Commons, March 3, 1817. MY LORD,-I am honoured with your Lordship's commands, signified in Mr. Goulburn's letter of the 21st ultimo, transmitting the copy of a despatch from Vice-Admiral Pickmore, Governor of Newfoundland, relative to the conduct of a Methodist minister in that colony in performing the marriage ceremony without a compliance with the formalities of the Church of England, and in opposition to the orders of the Governor, a clergyman of the Church of England being actually resident in the colony.

And your Lordship is pleased to request that I would take the same into consideration, and report to your Lordship my opinion, whether marriages so celebrated are legal and valid; and if illegal, whether the person so celebrating them is liable to any and what penalties?

In obedience to your Lordship's directions, I have considered the same, and beg leave to refer to a report of the 11th of May, 1812, which I had the honour to make, jointly with the Attorney and Solicitor General, to the Secretary of State for the Colonial

Department, on the subject of marriages in Newfoundland, in which the general principle of the law of England was stated, as requiring the celebration of marriage by religious ceremonies for the perfect regularity of the marriage contract.

In the case represented in these papers, the certificate describes the marriage to have been celebrated according to the form of the Church of England by George Cubit, Methodist minister, "set apart (as it is expressed in his pretended letters of orders) by the authority of four private ministers in connection with the conference of the people called Methodists."

It is not the case, therefore, of a person assuming ostensibly the character of a person in holy orders. But the question is, whether a marriage celebrated by a minister as above described, unconnected with local customs, or with any circumstances of special exception, is a legal and valid marriage?

The mere civil contract of parties which has constituted marriage in some countries has been considered not to be sufficient alone to perfect that relation by the ecclesiastical law of England ; and I believe it may be stated, that there has not been any positive decision to the contrary in any Court.

The issue of parties cohabiting under such contract, alone, without subsequent espousals in facie ecclesiæ, has been held illegitimate. It has been determined, also, by high authority at common law, that the woman was not entitled to dower; and the conclusion is drawn from that case, in the words of the learned editor, "that neither the contract, nor the sentence of the ecclesiastical court (decreeing the marriage to be solemnized, without the actual celebration), was a marriage.”

The terms in which the several Acts of Parliament in the reigns of Henry VIII. and Edward VI., and 12 Charles 2, c. 33, speak of marriage, further support the conclusion that no other form of mar riage than that by celebration in facie ecclesiæ has been considered to constitute a perfect and legal marriage in the contemplation of the law of this country.

The same construction has been put on marriages celebrated by ministers not ordained by episcopal ordination, even subsequent to the Toleration Act (1). The principle of that decision, also, is

(1) Haydon v. Gould, 1 Salkeld, 119.